Exactly two weeks after the law secretary of Haryana government came up with a formal notification to bring into effect the law enacted to provide 10% reservation in government jobs and educational institutions to Jats and five other castes, things are back to square one.
The Punjab and Haryana High Court on May 26 put a stay on the operation of the Jat quota provisions of Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016.
Exasperated Jat organisations are gearing up for yet another stir sending alarm bells ringing in the corridors of power, the memories of the February violence still not erased.
Not a surprise
The writing was on the wall the day Haryana assembly passed the Bill to provide 10% reservation to Jats and five other castes. It was pretty obvious the quota law would not stand legal scrutiny and it was primarily a move to buy some time to pacify Jats.
Reason: The BJP government had predominantly relied on the recommendations of the re-constituted Haryana Backward Classes Commission of 2011 headed by Justice KC Gupta (retd) to make out a case for grant of quota to Jats and five other castes. The recommendations of the Justice Gupta Commission however were trashed by the Supreme Court in its March 17, 2015 order by which it had set aside the inclusion of Jats in the central list of other backward classes (OBCs). So there was no tenable ground, data and justification for Manohar Lal Khattar government to enact a law for providing reservation to Jats.
The apex court had said the National Commission for Backward Classes (NCBC) also found that the report of Justice KC Gupta Commission, the primary document pertaining to Haryana, had inherent flaws which made it unworthy of acceptance.
Securing quota law
The Jat organisations as well as Haryana and Central governments were well aware the quota law will not withstand the legal test, a reason why the state government chose to delay the notification of the law and devised an escape route by first constituting the Haryana Backward Classes Commission.
The state government did not immediately notify the quota Bill passed by the state assembly on March 29 and assented to by the governor on April 1 as it was expected to be challenged in a court of law as soon as it was notified.
The government instead chose to notify the Haryana Backward Classes Commission Act, 2016, to set up a permanent statutory mechanism for examining requests of inclusion and complaints of over-exclusion and under-inclusion of backward classes.
Subsequently it constituted a four-member commission under the chairmanship of a former judge, Justice SN Aggarwal. The idea behind constituting the Backward Classes Commission first and then notifying the quota law is that once the quota law is challenged in the courts, the state government will take a plea before the court that since a commission to examine requests of inclusion of backward classes has been set up, the court should refer the matter to the commission.
Ninth Schedule: Easier said than done
While the state government had decided to make a request to the Central government to include the quota law in the Ninth Schedule to the Constitution to secure the enacted quota law from judicial review, it was easier said than done. For including the Haryana quota law in the Ninth Schedule to the Constitution, a Constitution amendment Bill will be required to be introduced by the Union government in the Parliament. A Constitution amendment Bill has to be passed in both Houses of Parliament by a special majority which is by a majority of the total membership of that House and by a majority of not less than 2/3rd of the members of the House present and voting. Also in case of any disagreement between the two Houses of Parliament on a Constitution amendment Bill, there cannot be a joint sitting of the Houses of Parliament on the Bill as Article 368 of the Constitution required each House to pass the Bill by the prescribed special majority.
The proposal to include Haryana quota law in the Ninth Schedule was to ensure that the quota law cannot be challenged as violative of fundamental rights and gets protection under Article 31-B of the Constitution.
Agitated Jats not listening
However, fidgety Jat organisations are not willing to buy any argument on this and are questioning the intentions of the state government. National chief of All India Jat Aarkshan Sangharsh Samiti (AIJASS), Yashpal Malik said: “Haryana government passed the quota law on March 29. The Central government had asked them to send the law for inclusion in the Ninth Schedule. But the quota law was notified when the session of the Parliament had come to an end. When the quota law was challenged in the high court, the state machinery did not respond. The law officers of the state government did not act even when the matter was listed.”
Even securing a law in the Ninth Schedule though would not mean blanket protection from judicial review as has been held by the Supreme Court in IR Coelho v/s State of Tamil Nadu case. In its January 2007 order, a nine member apex court bench said all amendments to the Constitution made on or after April 24, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them.